NR Allsopp Holdings Pty Ltd as General Partner of Q Uniform Partnership v Commissioner of Taxation
[2016] FCAFC 87
•22 June 2016
FEDERAL COURT OF AUSTRALIA
NR Allsopp Holdings Pty Ltd as General Partner of Q Uniform Partnership v Commissioner of Taxation [2016] FCAFC 87
Appeal from: NR Allsopp Holdings Pty Ltd as General Partner of Q Uniform Partnership and Commission of Taxation (Taxation) [2015] AATA 654 File number: QUD 895 of 2015 Judges: LOGAN, GRIFFITHS AND PAGONE JJ Date of judgment: 22 June 2016 Catchwords: PARTNERSHIP – limited partnership – certificate of registration of limited partnership – whether certificate conclusive evidence of formation of limited partnership – whether necessary for partnership to exist before registration – general law partnership
TAXATION – dividends – franking credits – debt and equity interests – whether debt interest or equity interest – whether financial benefit provided under scheme – whether effectively non-contingent obligation under scheme to provide financial benefit
TAXATION – administrative penalty – whether position of taxpayer reasonably arguable – whether it would be concluded that what is argued for is about as likely as not correct
Date of hearing: 11 February 2016 Registry: Queensland Division: General Division National Practice Area: Taxation Category: Catchwords Number of paragraphs: 3 Counsel for the Appellants: Mr K Wilson QC with Mr A Anderson Counsel for the Respondent: Ms K Mellifont QC with Mr M Ballans Solicitor for the Appellants: Cleary Hoare Solicitors Solicitor for the Respondent: Australian Government Solicitor Table of Corrections 5 July 2016 On the cover page, the appearance for the respondent has been corrected. ORDERS
QUD 895 of 2015 BETWEEN: NR ALLSOPP HOLDINGS PTY LTD AS GENERAL PARTNER OF Q UNIFORM PARTNERSHIP
First Appellant
THE TRUSTEE FOR THE NKP SHEETMETAL TRUST
Second Appellant
THE TRUSTEE FOR THE UNIFORM GENERAL TRUST
Third Appellant
AND: COMMISSIONER OF TAXATION
Respondent
JUDGES:
LOGAN, GRIFFITHS AND PAGONE JJ
DATE OF ORDER:
22 JUNE 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants are to pay the respondent’s costs of the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LOGAN J:
I have also had the advantage of reading in draft the reasons for judgment of Pagone J in the Allsopp appeal. I agree that while the facts differ in detail in this appeal from those of the D Marks proceeding, the issues do not. Thus, for the reasons given by me in the D Marks appeal, I would allow the Allsopp appeal.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 22 June 2016
REASONS FOR JUDGMENT
GRIFFITHS J:
I too have had the advantage of reading in draft the reasons for judgment of Pagone J in the Allsopp appeal. I likewise agree that though the facts differ in detail from those in the D Marks proceeding, the issues do not. Accordingly, for the reasons given by me in that appeal, I would dismiss the Allsopp appeal.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 22 June 2016
REASONS FOR JUDGMENT
PAGONE J:
This appeal (“the Allsopp appeal”) was heard with that in QUD896 of 2015 (“the D Marks appeal”) and raised the same issues. The facts in the Allsopp appeal differed in their detail but did not raise different issues, and the parties agreed that the determination of the issues in the D Marks proceeding would also apply to the Allsopp appeal. Accordingly, I would dismiss the Allsopp appeal for the same reasons as those given in the D Marks appeal.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 22 June 2016
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